believes that FIFRA is best read as allowing the Agency to issue a cancellation order whenever a pesticide that has been sold with the imprimatur of a registration has that registration terminated, for whatever reason. The fact remains that distributors and end-users may have possession of stocks of a pesticide product purchased in good faith after EPA issued a registration permitting distribution of the product in commerce and establishing conditions pertaining to the use of the product. The issuance of a cancellation order allows the Agency to appropriately regulate distribution and use of those stocks.
In the case of sulfoxaflor, while the Circuit Court determined that the registrations should not be allowed to continue unless and until EPA obtains additional studies and data on sulfoxaflor's effect on bees, the question of what should happen to existing stocks of sulfoxaflor that are already in the channels of trade (i.e., material that has been released for shipment and is in the hands of sellers, distributors, or users) at the time the registrations terminate due to the vacatur was not before the court. In the absence of any action by EPA, all sale and distribution of formerly-registered sulfoxaflor products would be unlawful under FIFRA upon vacatur. The term "distribute or sell" is defined very broadly in FJFRA section 2(gg) (7 U.S.C. §136(gg)), and includes, among other things, any "shipment" of unregistered pesticide. Without action by EPA, the termination of the registrations would thus make illegal not just any sale, but any further movement of material currently in the hands of distributors or retailers. FIFRA section 12(a)(l)(A) (7 U.S.C. §136U)(a)(l)(A)) makes it a violation of FIFA for any person to sell or distribute an unregistered pesticide), and subjects any seller/distributor to potential civil or criminal penalties under FIFRA section 14 (7 U.S.C. §1361).
There is no corresponding provision of FIFRA that prohibits use (as opposed to distribution or sale) of unregistered pesticides (see FIFRA section 12 (7 U.S.C. §136j)). Furthermore, section 12(a)(2)(G) (7 U.S.C. §136j(a)(2)(G)) only makes it a violation of FIFRA for any person to " use any registered pesticide in a manner inconsistent with its labeling" (emphases added); there is no provision that requires that unregistered pesticides (including formerly-registered pesticides) be used according to their labels. Thus, in the absence of EPA action, users of unregistered pesticides are not obligated to follow the labeling (which, for registered pesticides, prescribes enforceable conditions for using the particular pesticide, among other things) accompanying the product. Therefore, once the registrations are terminated, unless EPA takes action, persons holding stocks of sulfoxaflor would not be legally precluded from using those stocks without following label directions, including the restrictions intended to reduce the risks to bees.
FIFRA contains a provision that allows EPA to issue enforceable orders governing the sale, distribution, and use of existing stocks of cancelled pesticides. Specifically, section 6(a)(l) of FIFRA (7U.S.C.§136d(a)(l)) provides that: "The Administrator may permit the continued sale and use of existing stocks of a pesticide whose registration is suspended or canceled under [sections 3, 4 or 6 of FIFRA] to such extent, under such conditions, and for such uses as the Administrator determines that such sale or use is not inconsistent with the purposes of [FIFRA]." Section 12(a)(2)(K) of FIFRA (7 U.S.C. §136j(a)(2)(K)) makes the failure to comply with a cancellation order enforceable under FIFRA. Whenever EPA cancels a registration, it issues such a cancellation order establishing enforceable provisions concerning the disposition of existing stocks. Such orders can authorize sale or distribution that would otherwise be unlawful,
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